The U.S. Department of Labor (DOL) and the USCIS recently issued final regulations significantly overhauling the H-2B program. The H-2B non-agricultural temporary worker program allows U.S. workers to bring foreign nationals to the United States to fill temporary non-agricultural jobs for which there is a shortage of U.S. workers. The final regulations become effective on January 18, 2009.  

The following are some of the highlights from the DOL’s and USCIS’ final regulations modifying the H-2B program:  

1. The DOL final regulation eliminates the involvement of the State Departments of Labor (SWAs) in the recruiting process. The DOL will now require employers to complete pre-filing recruiting prior to submitting a revised application (Form 9142) to the DOL’s Chicago Processing Center.  

2. Prior to commencing the recruiting process, employers will be required to obtain a prevailing wage determination from the DOL’s Chicago National Processing Center. However, if the offered position in the temporary labor certification application contains a start date prior to October 1, 2009, the employer will still be required to obtain a prevailing wage determination from the SWA prior to commencing the recruiting process. However, if the need for the offered position commences on or after October 1, 2009, the employer will be required to obtain the prevailing wage determination from the Chicago National Processing Center. The prevailing wage request filed with the Chicago National Processing Center will be made on the DOL’s new Form 9141. fBecause the recruiting process will not be completed under the supervision of the SWAs, employers will now be required to retain documentation of its recruiting efforts and compliance with the H-2B program regulations for three years from the date of certification.  

3. The USCIS’ regulations and DOL’s regulations expand the available validity time for a one-time temporary event from one year to up to three years. However, if an employer requests certification based on a one-time occurrence that it expects to last 18 months or longer, the employer will be required to conduct one or more additional labor market tests. Please note that this expansion only applies to one-time temporary occurrences. It does not apply to peak load needs or seasonal need.  

4. The DOL’s final regulation continues to require a test of the labor market for qualified U.S. workers no more than 120 days before the date the work must begin. However, the USCIS’ final regulation now requires that beginning in fiscal year 2010 (October 1st 2009) the start date indicated on the H-2B petition filed with the USCIS must be the same start date indicated on the DOL’s temporary labor certification application.  

5. In its final regulation, the DOL modifies the types of recruitment which must be completed as part of the temporary labor certification process. Prior to filing the temporary labor certification application with the DOL, the employer must place a job order with the SWA. The employer must also recruit for the position in two newspaper advertisements, one of which must be in a Sunday edition of a newspaper closest to the area of intended employment. The newspaper chosen by the employer must also have a reasonable distribution. If the employer is already a party to a collective bargaining agreement that covers the occupation at the worksite that it is a subject of the H-2B application, the employer is required to also contact the labor organization that is party of the agreement.  

6. The DOL’s and USCIS’ final regulations require employers to notify the DOL and USCIS no later than two work days after an H-2B employee abandons his/her assignment or the employer terminates the employee. If an employee of absconds his/her employment and the employee has not reported to work for a period of five consecutive work days without the consent of the employer, the employer is also required to notify the DOL and USCIS.  

7. The DOL’s and USCIS’ final regulations prohibit employers (or a recruiter retained by the employer) from seeking or receiving payments from prospective employees. The final regulations make clear that recruiters may not pass on expenses to H-2B employees. Employers can not require H-2B employees to reimburse it or any third party for expenses in conjunction with obtaining or maintaining H-2B employment including but not limited to international recruitment, legal fees, visa fees or other fees that the DOL believes should be paid by the employer as a cost of doing business. However, the DOL clarified that H-2B employers are not required to pay the relocation costs of H-2B employees.  

8. The DOL’s final regulation requires employers that place H-2B employees at client sites to inquire with the client about whether it has displaced or intends to displace a similarly employed U.S. work within the area of intended employment within 120 days of the date of need. The H-2B employer is required to attest that it has made a written bona fide inquiry with the client where the H-2B worker will be placed on the temporary labor certification application.  

9. The DOL’s final regulation provides the DOL to audit temporary labor certification applications. It also allows for the DOL to complete supervised recruitment of certain temporary labor certification applications after submission.  

10. The DOL’s final regulation allows for the DOL to debar an employer, agent or attorney for a period of no less than one year and no more than three years. The DOL may also assess civil monetary penalties in an amount not to exceed $10,000 per violation for any substantive failure to meet a condition provided on the H-2B application. The employer may also be required to pay back wages when it fails to pay at least the wage rate stated on the temporary labor certification application.  

11. The USCIS’ final regulation provides that an employer may not file an H-2B petition with the USCIS unless it has received an approved temporary labor certification application from the DOL. If the DOL denies a temporary labor certification, the DOL’s final regulation now provides that an employer may appeal the DOL’s negative determination with the Board of Alien Labor Certification Appeals (BALCA). BALCA will be required to issue a decision within 15 business days after a request for review is filed by an employer.  

12. An H-2B employee may only remain in the United States for a period of up to three years. However, the USCIS final regulation reduces the amount of time that an employee will have to remain outside the United States before he/she is eligible for another three-year period. The new regulation provides that an H-2B employee only has to remain outside the United States for three months (instead of the previous six months) in order to be eligible for a new three-year period of stay.  

13. The USCIS final regulation establishes a land-border exit system pilot program under which H-2B employees admitted through a participating port-of-entry must also depart through that participating port-of-entry and present, upon departure, designated biographical information. The USCIS indicated that it will be issuing a separate final regulation implementing this pilot program.  

14. The USCIS final regulations only permits nationals of certain countries “important to the operation of the H-2B program” and appearing on a list to be published annually in the Federal Register to participate in the H-2B program. The initial list will include at least 26 countries including Mexico, Jamaica, Costa Rica, Canada, the Philippines, South Korea and the United Kingdom, to name a few. The USCIS stated that it may allow on a case-by-case basis a worker from a country not on the list to be eligible for the H-2B program if such participation is “in the U.S. interest.”